Australia: Australian controversial Assistance & Access Act: Review by Independent Monitor completed

In early July 2020 the Attorney-General tabled in Parliament the review undertaken by the Independent National Security Legislation Monitor into Australia's controversial Assistance & Access Act.

Controversy surrounding the Act

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (Assistance & Access Act) was passed by the Australian Parliament in December 2018. Broadly speaking, the Assistance & Access Act requires that communications sector businesses provide assistance to national security and law enforcement agencies to access communications in relation with national security and law enforcement. It is controversial legislation, which has been vigorously opposed by the communications sector. It received bipartisan support only as a result of the looming 2019 election, with the opposition Australian Labor Party keen not to make national security an election issue.

Schedule 1 of the Assistance & Access Act is particularly controversial, with detractors claiming that it may lead to a requirement for technology companies to introduce "backdoors" into their communications systems which may then be exploited by bad actors. Schedule 1 introduced a new Part 15 in the Telecommunications Act 1997 (Cth) (Telecommunications Act). That Part 15 provides for 3 new national security and law enforcement tools:

• Technical Assistance Requests (TARs), under which relevant national security and law enforcement agencies may request voluntary assistance from "designated communications providers". "Designated communications providers" is broadly defined to include telecommunications service providers, software and app providers, device manufacturers and others;
• Technical Assistance Notices (TANs), which are issued by relevant agency heads and compel a designated communications provider to provide assistance if its current capabilities allow it to do so. TANs cannot require a designated communications provider to build a capability or functionality that it does not already possess; and
• Technical Capability Notices (TCNs), which are issued by the Attorney-General and (like TANs) compel assistance from designated communications providers. Importantly, as compared with a TAN, a recipient of a TCN may in fact need to build a capability or functionality to provide the assistance.

These requests and notices may only be issued in limited circumstances, for example in connection with the enforcement of particular criminal laws (including in some cases criminal laws of other countries) or the protection of Australia's national security. In each case, a request or notice must not be issued unless the assistance proposed is reasonable, proportionate, practicable and technically feasible.

Review by the Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is currently undertaking its third review related to the Assistance & Access Act, which is considering the following issues, amongst others:

• the threshold, scope and proportionality of powers provided for by the Act;
• authorisation processes and decision-making criteria; and
• the scope of enforcement provisions and the grant of immunities.

It has received over 30 submissions and is holding public hearings (the first held on 27 July and a second one scheduled for 7 August 2020).

INSLM Review

In March 2019 the PJCIS requested Dr James Renwick CSC SC, as the then Independent National Security Legislation Monitor (INSLM), review the operation, effectiveness and implementation of the Assistance & Access Act and whether the Assistance & Access Act:

• contains appropriate safeguards for protecting the rights of individuals;
• remains proportionate to any threat of terrorism or threat to national security, or both; and
• remains necessary.

The INSLM review also satisfies the requirements of section 6(1D) of the Independent National Security Legislation Monitor Act 2010 (Cth), which required the INSLM to review the operation, effectiveness and implications of the Assistance & Access Act 18 months after it had been in operation.

The INSLM report was tabled in Parliament by the Attorney-General on 9 July 2020. At over 300 pages in length, the report contains a detailed analysis of the law and possible reforms. In a general sense, the report found that the Assistance & Access Act is necessary but did recommend amendments to Part 15 of the Telecommunications Act and amendments to relevant provisions of the Australian Security Intelligence Organisation Act 1979 (Cth). Looking specifically at Part 15 of the Telecommunications Act, the report recommended:

• Part 15 should be extended to enable integrity agencies (both Federal and State/Territory), including the proposed new Commonwealth Integrity Commission, to seek TARs, TANs and TCNs.
• Part 15 should be amended so that TANs and TCNs may only be issued by application to the Administrative Appeals Tribunal (AAT). This would replace the current regime, which allows relevant national security and law enforcement agency heads to issue TANs and the Attorney-General to issue TCNs.
• A new statutory office, the Investigatory Powers Commissioner, should be created. The Commissioner would also be a part time Deputy President of the AAT and head of the Investigative Powers Division of the AAT. In addition to having the role of approving the issue of TANs and TCNs, the new Commissioner would also have the role of monitoring the operation of Part 15 and issuing guidelines in relation to it.

What change is likely?

The Australian Labor Party introduced the Telecommunications Amendment (Repairing Assistance and Access) Bill in the Senate in December 2019. That Bill is intended to incorporate into the Assistance & Access Act amendments that were initially proposed by the PJCIS in 2018, when it considered the draft legislation, but which were not incorporated in the Act before it was passed.

At the time he tabled the INSLM report in Parliament, the Attorney-General stated that the Government would not make any response to that report until the current PJCIS review is completed, commenting only that his view was the Assistance & Access Act has been critical in protecting Australia's national security. The reforms recommended in the INSLM report have however had support from other stakeholders. For example, the chief executive of Communications Alliance, the peak telecommunications industry body, stated at the PJCIS hearing on 27 July 2020 that, notwithstanding the recommendations were not the changes that Communications Alliance had proposed, the INSLM suggested reforms were sensible and struck a "useful" balance between security, privacy and law enforcement requirements.¹

Nonetheless, given the comments from the Attorney-General in relation to the INSLM report, it is unlikely the Government will support any changes to the regime in the short term. It will be necessary to wait until after the PJCIS report is tabled in September to assess whether the amendments proposed by the INSLM, or any other amendments that flow out of the PJCIS report, are put forward by the Government.

Footnote

¹As reported in Communications Day, 28 July 2020 at page 2.

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